What Matters Now to top Canadian jurist Irwin Cotler: Drafting Israel’s constitution

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Welcome to What Matters Now, a weekly podcast exploration into one key issue shaping Israel and the Jewish World — right now.

About three months ago when Justice Minister Yariv presented the judicial overhaul package, it seemed like everyone in Israel’s pro-reform camp began speaking about Canada as a justification for the coalition’s controversial bills.

That made this week’s What Matters Now guest, former Canadian Justice Minister Irwin Cotler, take notice.

Cotler joined me at The Times of Israel’s Jerusalem offices this week to discuss how the use of Canada as an example in support of the judicial overhaul package is basically “fake news.”

The veteran human rights lawyer discusses how Canada worked through its own constitutional crisis in the 1980s, how Israel is setting itself up for trouble with the International Court of Justice and his fervent hope that the Jewish state will reach 75 with a consensual, ratified People’s Constitution.

In a week in which hundreds of thousands of Israelis spontaneously took to the streets to vote against the judicial overhaul with their feet, find out What Matters Now to international legal authority Irwin Cotler.

The following transcription has been lightly edited.

The Times of Israel: Irwin, thank you so much for joining me today in our Jerusalem offices. It’s been quite the week with a general strike and all sorts of tumultuous protests on the street. And now today, finally, people are gathering around the table at President Isaac Herzog’s residence and starting to discuss what could be, who knows, maybe the beginning of a constitution. So I ask you, Irwin, what matters now?

Irwin Cotler: Well, I think that this is an important and not only a constitutional moment, but even a decisive one in all respects. And I’m hoping that the hidabrut, the coming together for this necessary conversation long overdue, will lead both to a process of reconciliation and to a substantive development that could even bring us to the first time ever in Israel 75 years to have finally a constitution with an entrenched Bill of Rights.

President Isaac Herzog hosts delegations from Likud, Yesh Atid and National Unity for judicial negotiations at his residence in Jerusalem, March 28, 2023. (Kobi Gideon/GPO)

There have been a lot of comparisons to Canada throughout this whole three months of, shall we say, constitutional chaos. And so many on both sides have put up Canada as an example of many different things, actually. And one of the key points of the more controversial sections of the judicial overhaul proposals has dealt with the override clause, or in Canada, I suppose it’s called the notwithstanding clause. Now, that came into play — and I believe you protested against it when it came into play in the 1980s — but what is the notwithstanding clause in Canada?

Well, the notwithstanding clause in Canada and you’re correct, I was opposed to its inclusion in the Canadian Charter of Rights and Freedoms in our Canadian constitutional moment back in 1980 to ’82, but it was included as part of the political bargain. But the main differences between the Canadian override, let’s say, and the Israeli proposal: Number one, the override in Canada is within a Charter of Rights and Freedoms, within a constitutional framework, not outside of it, as would be in Israel.

Number two, it’s within a federal system. That federal system has its own checks and balances, and the federal government undertook back then, and when I was Minister of Justice and Attorney General of Canada, I reaffirmed it, that we would never invoke the notwithstanding clause, we would never invoke the override. So it was left only to the provinces, and therefore its impact is limited in that regard.

Number three, and a very important point that is always ignored, the override in Canada does not apply to major categories of rights in the Charter of Rights and Freedoms. Does not apply, for example, to minority language rights. It does not apply — and this is interesting because we have another notwithstanding clause in the Canadian Charter of Rights and Freedom, which says notwithstanding anything in this act, men and women are equal in all respects. So it does not apply to gender equality. By the way, that’s one of the only notwithstanding clauses of its like in the world that’s the “right kind” of notwithstanding clause, to promote and protect gender clause. So it does not apply to major categories.

Number four, it’s got a sunset clause and so it lapses after five years and has to be reenacted again.

Number five, it is being constitutionally challenged. In other words, I can give one reason after another. And I would conclude by saying, if Israel were to enact an override provision with all the protections of the Canadian Charter of Rights and Freedoms and within a constitution here, I would think differently and could even be supportive of such an override provided it had all these protections and with a majority of some 65 members to support it.

65 is still rather low, seeing as how the coalition is 64. But it would need one more voice, at least from the opposition.

But it would also have to have all those other protections that I mentioned.

Supreme Court Justice nominee Judge Marshall Rothstein, center, smiles as he is flanked by former Liberal Justice Minister Irwin Cotler, left, and current Justice Minister Vic Toews, right, as he arrives to appear before the House of Commons committee looking into his nomination to the Supreme Court, on Parliament Hill, in Ottawa on February 27, 2006. (CP Photo/Fred Chartrand)

It sounds like a Cinderella list. You may go to the ball if you get your chores done and you find something good to wear. But I wanted to also emphasize what you mentioned about how the Israeli system is just completely different than the Canadian system. Canada, of course, has a bicameral system, though I was thinking about it last night and there are about 38 million Canadians and there are about 9 million Israelis and the ratio of parliamentarians is about the same, I think, if I’m not mistaken. But what does this bicameral system do?

Well, the bicameral system is very important both for the consideration and the adoption of legislation because you need both Houses of Parliament involved in that regard. And that bicameral system played a crucial role in our constitutional moment. Back in 1980, the then-Canadian prime minister Pierre Trudeau, the father of the present Canadian Prime Minister Justin Trudeau, proposed as one of his first initiatives when the Liberals came back to power a Canadian Charter of Rights and Freedom, something that he had been speaking of beforehand.

What then ensued was a sustained deliberative process anchored in the Joint House-Senate Committee on the Constitution that met both in 1980 through 1981 and hundreds of groups appeared before it and made submissions. Hundreds of others also submitted briefs and the like. So you had, as I said, a sustained, deliberative, engaged process overseen by both houses of parliament with representation from all parties. And so you had this engaged process and at the end of the day, when the Charter of Rights and Freedoms was adopted, it was very different from the one proposed by Trudeau. And he himself said at the end of that process when the Charter of Rights and Freedoms and Constitution was adopted, he said, you know, this began as the Trudeau Charter of Rights and Freedoms and it has ended up as the People’s Charter of Rights and Freedoms — and it is all the better for it.

And so I would like to see a similar process involved here. The other thing that’s very important, I think, with regard to Israel is that with the adoption of the Constitution, the Charter of Rights and Freedoms, Canada moved from being a parliamentary democracy to being a constitutional democracy, from the sovereignty of Parliament to the sovereignty of the Constitution. To the courts and the Supreme Court, being not only the arbiter of legal, federalism and disputes between the federal government and the provinces, as it had been for 115 years, since Confederation in 1867 till 1982, but it now became the guarantor of human rights. Not because the Supreme Court sought that, but because parliament vested in the Supreme Court that authority for the protection of human rights under a constitution and an entrenched charter of rights and freedoms.

Cast your mind back to the early 1980s, if you can, and try and explain to me the pros and cons of both systems, because this couldn’t have passed so easily, as you’re somewhat describing. It sounds very utopian: Now, at the end, we have this People’s Charter. But I imagine there was some real angst about deciding who holds the power, the politicians or the courts, as you said, the Parliament or the Constitution.

Well, it was interesting. I came before that Joint House-Senate Committee on the Constitution on behalf of three different groups. I was there on behalf of the Canadian Jewish Congress, where I was serving as president at the time. We set up a special committee on the Constitution that was headed by major Canadian jurists, including former Dean of Law at McGill Maxwell Cohen. I came there on behalf of indigenous peoples, and I came there on behalf of the Canadian Civil Liberties Association. And this is relevant to your question because we came before that Joint House Senate Committee and the Constitution, and the headline the next day after our appearance was front page in the Toronto Star, “Thanks, But No Thanks.” We said, if this is what you are offering us, we don’t want it because it does not vest in the Supreme Court, in the judiciary, sufficient authority and independence to protect the Constitution and to protect rights. We believed that the government and the parliament would still have too much authority under the Charter of Rights and Freedoms. So we sought that kind of rebalancing, that kind of relationship between the three branches of government for the purposes of protecting the free and fair elections and parliament role and executive responsibility, but also an independent judiciary with the authority for judicial review.

Then-prime minister Menachem Begin meets then-Canadian prime minister Pierre Trudeau, November 8, 1978. (Ottawa Jewish Archives)

Even today, Canada isn’t a perfect system. If I’m not mistaken, there are, what, nine Supreme Court justices and they’re politically appointed, no?

Well, this is again, the situation here is not always understood because not only did the Israeli government people point to Canada for the override, they look to Canada also with regard to the judicial appointments process. But it’s very different.

They are correct in that up till 2004, it was what they claimed it to now be. In other words, the appointments of the Supreme Court were by the prime minister on the recommendation of the Minister of Justice. The process was not open, transparent, public, interactive. When I became Minister of Justice and Attorney General back in 2003, the irony is that I then invoked the Israeli model for choosing Supreme Court justices because I thought this was a much more inclusive representative model that had on its panel here ministers, parliamentarians, Supreme Court judges, and recommended that model for Canada.

That model was not adopted, but it did lead to the model that we now have, which is the final appointment is still made by the prime minister on the recommendation of the Minister of Justice. However, this follows an independent advisory committee of eight people, on whom sit three people appointed by the Minister of Justice, two of whom must be from the public; then a representative from the Canadian Bar Association; a representative of the Federation of Law Societies of Canada, it’s part of the federal system; a representative of the Canadian law deans; a representative of the Indigenous Bar Association to reflect diversity…

In other words, it’s an eight-person independent committee. The first chair of this advisory committee, for example, was the former conservative Prime Minister of Canada, Kim Campbell, who was appointed by a liberal government, Justin Trudeau, to chair this independent, nonpartisan advisory committee, whose makeup is of the most distinguished of those eight peoples in each of the categories. And they are themselves to then engage in a process involving the recruitment of and engagement with prospective candidates. And in particular, there’s an inventory or protocol whom they are to consult with. The process is public, transparent, reported upon, et cetera. They then recommend, at the end of this engaged process, three to five candidates. Those three to five candidates are given to the Minister of Justice. He then himself engages in another process, which also includes meeting with members of parliament of both houses, et cetera, et cetera. They finally come with the list that is agreed upon, consensus, that is then given to the prime minister, and then a candidate is chosen. But after a very sustained, deliberative, open, transparent, engaged process.

And he must recommend somebody from the list that was generated by this advisory committee?

He’s not obliged, but that is the clear expectation. That’s what’s happened.

That’s a long process.

It’s a very long process. And interestingly enough, we finally now have, as a result of the most recent Supreme Court appointment, the first ever indigenous person to sit on the Supreme Court of Canada, an indigenous woman. And prior to that, out of that same process, we had the first member of the Baha’i community, Canadian Baha’i, to sit on the Supreme Court of Canada. So you can see that it’s reflecting diversity as well as excellence resulting from that protracted and sustained deliberative process.

The Judicial Selection Committee during the 34th government of Israel convenes, with then-justice minister Ayelet Shaked together with then-Supreme Court president Miriam Naor, then-finance minister Moshe Kahlon and other members of the Israeli Judicial Selection Committee, February 22, 2018. (Hadas Parush/Flash 90)

So now that Israel is poised — because basically this legislation of judicial appointments is ready, prepped for its voting — to abandon this more diverse system of choosing Supreme Court judges, what do you foresee?

Well, I think if the proposal of the Judicial Selection Committee, as was proposed by [Israeli Justice Minister Yariv] Levin and [MK Simcha] Rothman, I believe it would not be a process that would be inclusive, representative, anchored in excellence.

The judicial selection process proposed by the government, which I hope now will be changed, politicizes the appointment of judges. There is a commanding majority for the government’s representatives on that committee and out of nine in the proposed committee, or 11, you just need a bare majority. And that bare majority is controlled by the government representatives. So you would have a clear politicized process with politicized appointees that would, in my view, diminish the respect for an independent judiciary and the authority of its decision-making.

And it wouldn’t end there because it’s not only that the process is politicized for the selection of judges. You also have, in addition to the override, what I call a preemptive override, which is requiring a full bench of 15 Supreme Court Justices and depending whether it’s the Levin or the Rothman option, either unanimous or 80% of the judges agreeing, which is simply something that is never going to happen.

So even that politicized court will not really have any legitimacy as well as authority or capacity for judicial review. So you’ll both politicize it and, in fact, neutralize it.

You talked about your role as being Justice Minister and Attorney General. That seems rather vast. Here in Israel, it’s likewise a very vast role. Do you think here in Israel it should remain such a huge role?

Well, that’s an interesting question. Actually, when I became minister, I had three major responsibilities. I was Minister of Justice, I was Attorney General and I was the head of the prosecutorial authority. I felt that that was vesting too much power in one individual. And so I recommended at the end of my term to the successor government, which is a conservative government, that the prosecutorial authority be hived off and be made independent. And that was accepted.

Attorney General Gali Baharav Miara at her inauguration ceremony in Jerusalem, February 8, 2022. (Yonatan Sindel/Flash90)

I made another recommendation which has not yet been accepted, that the Minister of Justice and Attorney General should also be separate people. Because really at this point it’s somewhat of a contradiction in terms because as the Attorney General I was required to give independent legal counsel to the government. As Minister of Justice, I was part of the government and if the government made a decision which rejected the opinion I gave as an independent legal advisor, then I was bound by the government’s decision and I could not even speak about it because I was bound by solicitor-client privilege. So I’m still in favor of the Minister of Justice and Attorney General positions being divided.

With regard to Israel, the positions are divided, but one has to ask oneself, and I think one should revisit the role of the attorney general here as to whether the decisions of the attorney general should in fact be binding or binding in all cases.

And what do you think?

I think that the advice of the attorney general, because it’s independent and because of the expertise of the attorney general, must be given appropriate recognition and respect. But I’m wondering whether it should be binding in all respects. I think that’s where it should be revisited. Certain matters of important security, public policy may not be ones that should be subjected to a binding recommendation by the attorney general.

Canada is only one of the countries that Israel has been compared to recently. Of course, those who are against the judicial overhaul compare this package to turning Israel into Hungary or Poland or Russia. What would you say about these comparisons?

Well, I think the situation is different. While I objected to the package of proposals because I thought it would undermine the independence of the judiciary — it would more or less eviscerate judicial review for the reasons I mentioned, politicize decision-making, et cetera, et cetera — I also believe that Israel is still a vibrant democracy. I think the hundreds of thousands of demonstrators week after week reflected that. And after all is said and done, even if these proposals were to be adopted, you’d still have free and fair elections. You’d still have an independent press, you’d still have freedom of association and assembly. And most importantly, you would have still a vibrant civil society.

Again, I shared all the reasons why I think the package of proposals would be prejudicial and detrimental, but it would not turn Israel into a dictatorship. Nor do I believe it would take Israel down the road to Hungary and Poland for all the reasons that I mentioned.

This is a vibrant democracy. One of the placards that most moved me when I was in the demonstration last Saturday was a young woman who was holding a placard and said in Hebrew, “Democracy is in our soul.” And I think the manifestations that we have been seeing week after week and the spontaneous demonstrations that occurred after the prime minister fired Defense Minister Gallant — it had 600,000-700,000 coming into the streets spontaneously — that was democratic.

Democracy is in our soul. So I have faith in the Israeli people, in the Israeli democracy in that regard. So I don’t think it’ll go down the road to Hungary and Poland, but it will go down the road — if this package were to be adopted in all the respects that I mentioned — to in fact undermine the independence of the judiciary and the capacity for judicial review.

Illustrative: A session of the International Court of Justice in The Hague, Netherlands, December 11, 2019. (Peter Dejong/AP)

Do you think that if this package is adopted, Israel’s standing in, for example, the International Court of Justice will be changed?

I think that, as we have seen, the very prospect of this being adopted has already harmed Israel’s standing. You see the comments that have been forthcoming, including from Israel’s most important strategic ally, the United States. But with regard to the International Criminal Court, for example, you’ve made a very important point because the reason that the Court — and I submitted a brief to the ICC as to why it should not have jurisdiction and the main point I made there was the principle of complementarity. That is because Israel has an independent judiciary and an independent Supreme Court, then there’s no authority for the ICC to open up investigations and prosecutions because that would breach the principle of complementarity, which precludes that kind of investigation and prosecution.

However, if this package of reforms were to be adopted, it might lead some to argue that, well, there’s no longer an independent judiciary, the principle of complementarity does not apply. Therefore, let us open, continue with the investigation and in fact prosecute and issue arrest warrants. So this could have followed particularly where you have those in the international community who, to begin with, cannot be said to be independent reviewers, but some of them have themselves their own biases, and then they could weaponize what is happening here for purposes of saying there’s no complementarity, let’s prosecute.

And when you’re saying arrest warrants, you’re talking about even just the regular soldiers, right, who might be leaving Israel and stepping foot into a country that could possibly be hostile.

Yes, it would make any country that is a state party to the International Criminal Court, a place that could in fact be called upon to issue, not only to issue, to in fact enforce, an arrest warrant. It would put Israelis and Israel in a very difficult position.

And how far away from that do you see this if this package is adopted?

Well, as I say, I hope that the cooler and rational heads will prevail and it wouldn’t be adopted. But if it were adopted, it still, in my view, would not end complementarity. It would allow those who would like to themselves politicize the International Criminal Court and weaponize it for lawfare purposes, as it’s called, to then use that as a means to issue arrest warrants. So I think we should protect ourselves in that sense.

In other words, those who are of the community of democracies and have been concerned by what is happening here are really advising Israel, among other things: Don’t go down that road because we may not be able to protect you if this complementarity thing then becomes weaponized as a result of this package of reform proposals.

There are many who talk about this package as the pendulum swinging back from the revolution of the 1990s, in which, of course, then Supreme Court Chief Aharon Barak took on a little more power than had been. And I’ve heard rumors at least that you were somehow involved in this, is that correct?

Well, this is an interesting point here. After the adoption of the Charter of Rights and Freedom in Canada, I was here as a visiting professor at the Hebrew University in 1990 and had been in touch before that with Dan Meridor who was Minister of Justice, with Amnon Rubenstein and the like.

Prime Minister Benjamin Netanyahu and Likud Minister Dan Meridor at a party meeting in the Knesset in September 2011. (photo credit: Miriam Alster/Flash90)

Then Prime Minister Benjamin Netanyahu (left) and Likud Minister Dan Meridor at a party meeting in the Knesset in September 2011. (Miriam Alster/Flash90)

And what is not that well known is that the 1992 Basic Law on Human Dignity and Liberty was itself based on Section One of the Canadian Charter of Rights and Freedom. It wasn’t based on all the other aspects, but on that foundational principle of Section One.

And when I was then discussing it with Dan Meridor, I was hoping that Israel would have its constitutional moment similar to Canada and adopt a Charter of Rights and Freedoms. It adopted only the Basic Law on Human Dignity and Liberty, which is very important. And so that constitutional revolution was not really Barak’s constitutional revolution. It actually was the government of the day and parliament that adopted it.

So I think it’s been a misnomer to refer to the Barak revolution because it was a parliamentary enactment, the same way that in Canada, parliament vested in the courts the authority for judicial review and not the courts who usurped it.

In 1992, it was the government which vested in the Supreme Court that authority and not Barak who usurped it.

Yes, in the bankruptcy decision in 1995, he gave effect to this constitutional revolution. But its initiative was really a governmental and parliamentary one in Israel and that I think has been ignored. And I would like to see government and parliament go further now and adopt a constitution whose centerpiece would be the Charter, a charter of rights and freedoms, anchored also in the Declaration of Independence, which is a remarkable document which affirms the principle of equality seven times in that document, which speaks as it does of Israel’s indigeneity and so on. I think that that would be a wonderful framing of a new Constitution and Charter of Rights for Israel.

David Ben-Gurion, flanked by the members of his provisional government, reads the Declaration of Independence in the Tel Aviv Museum Hall on May 14, 1948 (Israel Government Press Office)

You know Israel very well and Israelis very well, up close and personal. Do you really think that we are ripe for this constitutional moment to actually bear fruit? Do you think that even though people are gathering around the President’s table, that something amazing, something wonderful will happen out of it?

Well, if Israel in 1948, amidst the war was able to then come together and adopt a declaration of independence that have representatives of every single party, including the Communist Party, et cetera, being signatories to it, why not now, 75 years later, celebrate that initial constitutional moment of the adoption of the Declaration of Independence to then frame it now as a centerpiece for a new constitution and use the present constitutional moment and maybe the dialectics of what has been happening up to now to bring the people together and anchor it in a — as we said in Canada, but can be said for Israel — a people’s constitution, a people’s charter of rights anchored in the principle of Israel as a Jewish and democratic and just state.

But do you really think it will happen?

I’m hopeful, and I’m always accused of being a congenital optimist, but I think it’s good to have that type of inspirational possibility because that could underpin a more hopeful dialogue when they come together, not only, let’s say, to revise the proposals that were put forward by the government, but to say, you know what? This is a historical moment. This is a constitutional moment. This is a time in history on our 75th anniversary, when we can, in fact, carve out the constitution for Israel as a Jewish, democratic, indigenous, just state. And I think that would really be the time to do it. And anchored in the principles, as I said, of equality, diversity and the like.

May we all be afflicted with your optimism. Thank you so much for joining me today.

Thank you for allowing me the opportunity to share some thoughts with you.

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